JUDGMENT

Jagdish Singh Khehar, J.

1. Heard learned counsel for the parties.

2. Sheikh Hussein was married to Banu Bibi. During the subsistence of his matrimonial ties, Sheikh Hussein executed a gift deed on 26.04.1952, whereby a “tiled house” with open space in Survey No.883 in Eluru town, West Godavari District, Andhra Pradesh was gifted in favour of his wife Banu Bibi.

3. It is not a matter of dispute, that Banu Bibi enjoyed the immovable property gifted to her, during the lifetime of her husband Sheikh Hussein. Sheikh Hussein died in 1966. Even after the demise of Sheikh Hussein, Banu Bibi continued to exclusively enjoy the said immovable property. On 02.05.1978, Banu Bibi sold the gifted immovable property, to V.Sreeramachandra Avadhani. The vendee V.Sreeramachandra Avadhani is the appellant before this Court (through his legal representatives).

4. Banu Bibi died on 17.02.1989. On her demise, the respondents before this Court - Shail Abdul Rahim and Shaik Abdul Gaffoor issued a legal notice to the vendee. Through the legal notice, they staked a claim on the abovementioned gifted immovable property. In the notice, the respondents asserted, firstly, that Banu Bibi had only a life interest in the gifted immovable property; and secondly, the respondents being the legal representatives of Sheikh Hussein (who had gifted the immovable property to Banu Bibi) came to be vested with the right and title over the gifted immovable property, after the demise of Banu Bibi. The vendee, V.Sreeramachandra Avadhani repudiated the assertions made in the legal notice dated 22.03.1989, through his response dated 16.04.1989.

5. Having realized that the vendee would not part with the immovable property purchased by him from Banu Bibi, the respondents preferred a suit bearing O.S.No.256 of 1989, before the Subordinate Judge, Eluru, West Godavari District, Andhra Pradesh. In the suit, the respondents sought a declaration of title, over the “tiled house” with open space, gifted by Sheikh Hussein to his wife Banu Bibi. In addition, the respondents sought recovery of possession, and also mesne profits, from the vendee V.Sreeramachandra Avadhani. The above Original Suit filed on 13.11.1989 was contested. A written statement was filed on 19.07.1990.

6. The Principal Senior Civil Judge, Eluru, West Godavari District, Andhra Pradesh dismissed the original suit on 19.08.1998. Relying on the judgment rendered by the Privy Council in Nawazish Ali Khan v. Ali Raza Khan, AIR 1948 PC 134, the trial court arrived at the conclusion, that the gift deed executed by Sheikh Hussein on 26.04.1952 transferring immovable property in favour of his wife Banu Bibi, was valid. It was also concluded, that the gifted immovable property came to be irrevocably vested in the donee Banu Bibi. That apart, the trial court held, that Sheikh Hussein had gifted the corpus of the immovable property to his wife Banu Bibi. Based on the aforesaid, it was further concluded, that all the conditions expressed by the donor Sheikh Hussein, in the gift deed dated 26.04.1952, depriving the donee of an absolute right/interest in the gifted property, were void. The trial court clearly expressed, that the gift deed dated 26.04.1952, was not in the nature of a usufruct.

7. Dissatisfied with the order passed by the trial court, the respondents preferred an appeal before the Second Additional District Judge, Eluru, West Godavari District, Andhra Pradesh. The First Appellate Court accepted the appeal preferred by the respondents on 05.01.2004. On the issue whether Banu Bibi had an absolute right over the “tiled house” with open space, gifted to her, the First Appellate Court recorded its finding on the basis of the text of the gift deed, dated 26.04.1952. The consideration recorded by the First Appellate Court is being extracted hereunder:

“13. It is the bounden duty of the plaintiffs to prove that, they have inherited the property as the legal heirs of Shaik Hussain Saheb, as his wife has no right to alienate